16-3861-cr United States v. Weaver

1 16-3861-cr United States v. Weaver

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse , 40 Foley Square, in the City of New York, on the 21 st day of June, two thousand seventeen.

PRESENT: J ON O. N EWMAN , J OSÉ A. C ABRANES , G ERARD E. L YNCH ,

Circuit Judges.

U NITED S TATES OF A MERICA , Appellee,

v. 16-3861-cr

E DWARD M ORRIS W EAVER , AKA N ED , Defendant-Appellant

. *

FOR DEFENDANT-APPELLANT: G EORGE W. H ICKS , J R . (C. Harker Rhodes IV and Michael D. Lieberman, on the brief ) Kirkland & Ellis LLP, Washington D.C.

FOR APPELLEE: D OUGLAS N. L ETTER (William E. Havemann and Scott R. McIntosh,

* The Clerk of Court is directed to amend the official caption as set forth above.16-3861-cr United States v. Weaver

2 Appellate Staff, on the brief ) for Chad A. Readler, Acting Assistant Attorney General, Civil Division, Washington D.C.; Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, NY.

Appeal from a judgment of the United Sta tes District Court for the Eastern District of New York (Joan M. Azrack, Judge ).

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the November 9, 2016 judgment of the District Court is
AFFIRMED

.
Defendant-appellant Edward Weaver was the Chief Executive Officer of Vendstar, a company accused of selling candy-vending machines using fraudulent sales tactics and misrepresentations. Weaver appeals from a judgme nt of conviction dated November 9, 2016, after a jury found him guilty of mail fraud, wire fraud, conspiracy to commit mail and wire fraud, and making false statements to government official s. The District Court sentenced Weaver to sixty months’ imprisonment.

On appeal, Weaver argues that he is entitled to: (1) a judgment of acquittal on the fraud and conspiracy charges because the alleged misrepresentat ions were immaterial as a matter of law; (2) a judgment of acquittal on the fraud and conspiracy ch arges because there was insufficient evidence of his fraudulent intent; (3) a judgment of acquitta l or, in the alternative, a new trial on his false statements charge because the two allegedly false statements were actually true or, alternatively, fundamentally ambiguous; (4) a new trial on all ch arges because the government made an improper argument during its rebuttal summation; and (5 ) resentencing because the District Court’s loss calculations were not supported by adequate evidence. The first issue concerning materiality is resolved in an opinion issued simultaneously with this summary order. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.

1. There Was Sufficient Evidence of Weaver’s Fraudulent Intent.

Weaver argues that there was insufficient eviden ce for a jury to conclude that he acted with
fraudulent intent. We will overturn a conviction based on insufficient evidence only if we determine that “no rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Morrison , 153 F.3d 34, 49 (2d Cir. 1998) (internal quotation marks omitted). “We defer to the jury’s determination of the weight of the evidence and the credibility of the witnesses, and to the jury’s choice of the co mpeting inferences that can be drawn from the
evidence.” Id.16-3861-cr United States v. Weaver

3 An individual is guilty of mail and wire fraud if he “use[s] the mail or wires in furtherance of a scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” United States v. Dinome , 86 F.3d 277, 283 (2d Cir. 1996) (internal quotation marks omitted). Accordingly, “[t] he essential elements of a mail [or wire] fraud violation are (1) a scheme to defraud, (2) mon ey or property [as the object of the scheme], and (3) use of the mails [or wires] to further the scheme.” Id. (internal quotation marks omitted and alterations in original). Among other elements, th e government must prove that the defendant acted
with fraudulent intent. Id . In other words, the government “must show that some actual harm or injury was contemplated by the schemer.” Id. (internal quotation marks and emphasis omitted).

Weaver’s argument that there was insufficient evidence of his specific intent to defraud
Vendstar customers fails. After careful review of the record, we conclude that there was sufficient evidence at trial to permit a rational jury to infer that Weaver intended to defraud Vendstar customers, including evidence that Weaver approv ed lies in Vendstar’s promotional materials and instructed his employees to use inflated revenue estimates on sales calls. That trial evidence sufficiently supported the conviction. Although th ere was some evidence suggesting that Weaver purported to discourage fraudulent sales tactics , the jury heard and rejected that evidence.

2. Weaver is Not Entitled to a Judgment of Acquittal or a New Trial on The False Statements Charge.

It is well settled that, in a prosecution for perj ury or false statement, “[a]bsent fundamental ambiguity or impreciseness in the questioning, the meaning and truthfulness of appellant’s answer [is] for the jury.” United States v. Bonacorsa , 528 F.2d 1218, 1221 (2d Cir. 1976). Moreover, “circumstantial evidence, including proof of a mo tive to falsify, often may serve to convince a reasonable juror beyond a reasonable doubt of a witness’[s] criminal intent.” United States v. Lighte

, 782 F.2d 367, 373 (2d Cir. 1986). A court is “hard pressed to overturn the fact finders’ determination especially since the evidence must be viewed in a light most favorable to the government.” Id. at 374.

The two false statements at issue are Weaver’s statement that there was “no relationship” between Vendstar and any locating service and his statement that “Vendstar had not referred customers to [Jim Ellis] since 2006.” JA 45-46. We aver argues that there was insufficient evidence that either of these statements, when taken in context, was false and, alternatively, that both statements were fundamentally ambiguous. We a ddress both arguments statement by statement.

Weaver contends that his statement that Vend star had “no affiliation” with any locating service was fundamentally ambiguous because he could have meant either that Vendstar had no formal affiliation, which would have been true, or that Vendstar had no informal affiliation, which would have been false. Alternatively, Weaver contends that his statement was actually true because he later told the agent that he referred custom ers to locating services, showing an informal16-3861-cr United States v. Weaver

4 affiliation, and thus he clearly underst ood the question to be asking about a formal relationship, of which there was none. We disagree with both arguments.

First, there was ample evidence from which a rational jury could conclude that Weaver understood the government agent’s question to be asking about any affiliation between Vendstar and the locating services. Second, there was evidence that Vendstar had other informal affiliations pertinent to the alleged fraud that he did not disclose, for example, Vendstar coordinated with locating services on sales calls to help lure c ustomers into believing that the vending machine business was more lucrative than it really was. Accordingly, there is no basis for us to overturn the jury’s finding that Weaver’s “no affiliation” statement was false.

Weaver similarly contends that his statement explaining that his company had not referred customers to Ellis since 2006 was either ambiguous or true because Ellis was operating his locating services under pseudonyms after 2006. Again, we disagree. There was ample evidence from which a rational jury could conclude that Weaver unders tood that the agent was asking about Ellis the person, regardless of any pseudonym Ellis was using at any particular time, and that Weaver knew that Ellis was the man behind the pseudonyms. Fo r example, there was evidence establishing that Weaver jokingly referred to Ellis by his assumed na mes. Thus, Weaver’s argument for an acquittal or a new trial relating to his second false statement also fails.

3. Weaver is Not Otherwise Entitled to a New Trial on All Charges.

A prosecutor is not permitted “to suggest to a jury that the conviction of a testifying coconspirator is evidence that a defendant on trial is guilty.” United States v. Louis , 814 F.2d 852, 856 (2d Cir. 1987). Nevertheless, he or she may disc lose a co-conspirator’s conviction in order to disclose “matters damaging to the credibility of a witness and [to] contradict[ ] . . . any inference that the government is concealing a witness’ bias.” Id. It is also permissible for a prosecutor, in response to a defendant’s claim that cooperating witnesses ar e lying, to “invite[ ] the jury to consider the implausibility of [a defendant’s] claim that the witnesses were all committing perjury.” United States v. Rodriguez , 587 F.3d 573, 583 (2d Cir. 2009).

Weaver contends that the government imprope rly argued to the jury during its rebuttal summation that the guilty pleas of cooperating wi tnesses were evidence of Weaver’s guilt. We disagree. After careful review of the government’s rebuttal and Weaver’s own summation and trial defense, we conclude the government did not a ct improperly in referring to the cooperating
witnesses’ convictions. Weaver and his co-defenda nts repeatedly attacked the credibility of the government’s cooperating witnesses, arguing th at they were lying and cooperating with the government for their own gain and that they were acting on their own. The government referred to the cooperating witnesses’ acknowledgement of partic ipation in the scheme to defraud in its rebuttal summation for at least two reasons. First, the govern ment sought to combat the argument that the witnesses were lying about their guilt because they di d not want to continue to fight the government16-3861-cr United States v. Weaver

5 at trial. Second, the government attempted to de monstrate that Weaver’s contention that the eight cooperating witnesses acted without the involvement of Vendstar’s CEO was implausible. Under the circumstances presented, both ar guments were permissible.

4. Weaver’s Sentence Should Not Be Vacated.

Finally, Weaver asks us to vacate his sentence because, he contends, the District Court’s loss calculations were not supported by sufficient evid ence, and thus the District Court committed a procedural error in calculating the app licable Guidelines range. Even assuming arguendo that the District Court erred in calculating the different loss amounts, we find that any such error was harmless because “the record indicates clearly th at the [D]istrict [C]ourt would have imposed the same sentence in any event.” United States v. Kent , 821 F.3d 362, 367 (2d Cir. 2016) (internal quotation marks omitted). Specifically, the Distri ct Judge explained that “[e]ven if the lower guidelines range were the applicable range, I woul d still give the same sentence that I’m about to pronounce”; that “[t]he parties’ disputes about th e loss amount . . . are la rgely beside the point. Whatever the appropriate loss calculation is under the guidelines, that does not change the conduct of the defendant and his coconspirators . . . I’m sentencing here the old fashioned way”; and that “[i]n determining the appropriate sentence . . . I ha ve focused on the defendant and his conduct, not the intricacies of calculation loss under the guidelines.” JA 747; see United States v. Binday , 804 F.3d 558, 598 (2d Cir. 2015) (concluding that imperfecti ons in the method of calculating the loss amount were harmless where the “district court explained that it would ‘calculate the guidelines, consider the guidelines, and then sentence in the old-fashioned way’”).

CONCLUSION

We have considered all of the arguments raised by Weaver on appeal and find them to be without merit. For the foregoing reasons, the Nove mber 9, 2016 judgment of the District Court is
AFFIRMED

.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk